United States District Court, D. Maine
WALLACE F. COOK, Plaintiff
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant
REPORT AND RECOMMENDED DECISION
C. NIVISON U.S. MAGISTRATE JUDGE.
Plaintiff Wallace Cook's application for disability
insurance benefits under Title II and supplemental security
income benefits under Title XVI of the Social Security Act,
Defendant, the Social Security Administration Acting
Commissioner, found that Plaintiff has certain medically
determinable impairments, but does not have a severe
impairment or combination of impairments. Defendant,
therefore, denied Plaintiff's request for disability
benefits. Plaintiff filed this action for judicial review of
Defendant's final administrative decision pursuant to 42
U.S.C. § 405(g).
a review of the record, and after consideration of the
parties' arguments, I recommend the Court affirm the
Commissioner's final decision is the October 26, 2015,
decision of the Administrative Law Judge (ALJ). (ECF No.
9-2.) The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
determined that Plaintiff is not disabled at step 2. While
the ALJ recognized medically determinable impairments
consisting of status post pituitary tumor, loss of visual
acuity, and degenerative disk disease, the ALJ found that the
impairments are not “severe” for purposes of the
disability standard applicable at step 2. (ALJ Decision
¶¶ 3 - 4, R. 16.)
must affirm the administrative decision provided the ALJ
applied the correct legal standards and provided the decision
is supported by substantial evidence. This is so even if the
record contains evidence capable of supporting an alternative
outcome. Manso-Pizarro v. Sec'y of HHS, 76 F.3d
15, 16 (1st Cir. 1996) (per curiam); Rodriguez Pagan v.
Sec'y of HHS, 819 F.2d 1, 3 (1st Cir. 1987).
Substantial evidence is evidence that a reasonable mind might
accept as adequate to support a finding. Richardson v.
Perales, 402 U.S. 389, 401 (1971); Rodriguez v.
Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981).
“The ALJ's findings of fact are conclusive when
supported by substantial evidence, but they are not
conclusive when derived by ignoring evidence, misapplying the
law, or judging matters entrusted to experts.”
Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999).
argues that the ALJ erred when he concluded Plaintiff's
impairments were not severe because although the ALJ relied
on opinions expressed by Disability Determination Services
consulting physicians in September 2013 (Trumbull, Ex. 1A)
and April 2014 (Lipski, Ex. 5A), after the opinions were
issued and before the hearing date, there were some
significant new medical findings. (Statement of Errors at 1 -
2.) In particular, Plaintiff contends that new findings of
venous insufficiency (Ex. 16F) and polyneuropathy (Ex. 17F),
and more recent studies of his degenerative disk disease (Ex.
19F) required additional expert assessment. (Statement of
Errors at 3 - 6.) Plaintiff maintains the ALJ's error is
particularly problematic because a person of his age (61 as
of the October 26, 2015, hearing) and educational background
(grade 11), whose skills (self-employed auto mechanic) do not
transfer to other work, is deemed disabled if his residual
functional capacity for substantial gainful activity is
limited to light or sedentary work. (Id. at 7.)
2, although a social security disability claimant must
establish that he or she suffers from a severe condition, the
burden is de minimis, designed merely to screen out
groundless claims. McDonald v. Sec'y of HHS, 795
F.2d 1118, 1123 (1st Cir. 1986). The ALJ may find that an
impairment or combination of impairments is not severe only
when the medical evidence “establishes only a slight
abnormality or combination of slight abnormalities which
would have no more than a minimal effect on an
individual's ability to work even if the individual's
age, education, or work experience were specifically
considered.” Id. at 1124 (quoting Social
Security Ruling 85-28). In other words, an impairment is
severe if it has more than a minimal impact on the
claimant's ability to perform basic work activities on a
regular and continuing basis. Id. According to
Defendant's regulations, such activities could include
walking or standing for as many as six hours, while carrying
heavy objects, over the course of an eight-hour day, forty
hours per week. 20 C.F.R. §§ 404.1522(a),
404.1545(b); Social Security Ruling 96-8p (“A
‘regular and continuing basis' means 8 hours a day,
for 5 days a week, or an equivalent work schedule.”).
This Court has observed:
There is no hard and fast rule requiring renewed evaluation
by a consulting expert every time a disability claimant
experiences new medical events or obtains new diagnoses in
the interval between the initial DDS consultant's RFC
assessment and the date of the administrative hearing.
Particularly where pain is concerned, an Administrative Law
Judge has the unenviable duty to make a credibility
determination, 20 C.F.R. §§ 404.1529(a), (c)(1),
(c)(4), 416.929(a), (c)(1), (c)(4); SSR 96-7p, and the
evidence contained in new medical records may, in some cases,
simply dovetail with the credibility determination. Where the
dividing line exists is difficult to determine and will
depend on the particular facts of a case.
Bachelder v. SSA Comm'r, No. 1:09-CV-436-JAW,
2010 WL 2942689, at *6 (July 19, 2010), report and
recommendation adopted, 2010 WL 3155151 (D. Me. Aug. 9,
2010). See also Rose v. Shalala, 34 F.3d 13, 18 (1st
Cir. 1994) (“[T]he amount of weight that can properly
be given the conclusions of non-testifying, non-examining
physicians will vary with the circumstances, including the
nature of the illness and the information provided the
expert. In some cases, written reports submitted by
non-testifying, non-examining physicians cannot alone
constitute substantial evidence, although this is not an
ironclad rule.” (citations and internal quotation marks
case, Donald Trumbull, M.D., and Marcia Lipski, M.D.,
determined that Plaintiff's impairments are not severe.
In forming their opinions, they considered medical evidence
related to Plaintiff's tumor removal/visual acuity,
degenerative disk disease, and headaches. (Ex. 1A, R. 70; Ex.
5A, R. 87.) Dr. Lipski also considered a lumbar x-ray report
of “mild” degenerative changes, dated April 16,
2014. (R. 88.) Both consultants reviewed the September 2013
examination findings of David Axelman, M.D. (Ex. 6F), who
assessed severe limitations impacting ...